MASTER SERVICES AGREEMENT

 

THIS MASTER SERVICES AGREEMENT (this “Agreement”) is entered into as of
________________, between D&D AdVenture Corp, LLC (d/b/a Continuud), an Indiana limited liability company (“Company”) and ____________________________________________________, a community health provider (“Client”). Company and Client are sometimes referred to collectively herein as the “Parties” or individually as a “Party”.  Therefore, the Parties agree as follows:

 

ARTICLE I

Term and Termination

 

1.1           Term. This Agreement will commence on the date stated above and continue for one year, unless sooner terminated or further extended as provided in this Agreement; provided, however, if any work under an SOW (hereinafter defined) is not yet complete on the day this Agreement would otherwise expire, this Agreement shall remain in full force and effect pending completion of such work. 

 

1.2           Termination for Default. Either Party may terminate the Agreement if the other Party defaults in the performance of any of its material duties and obligations and the default is not cured within thirty (30) days of the receipt of notice of said default, or if the default is not reasonably curable within said period of time, unless the defaulting Party commences cure within said period of time and diligently proceeds to cure the default.

 

1.3           Termination for Cause. Either Party may immediately terminate this Agreement by giving written notice to the other Party if the other Party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction, if the other Party makes an assignment for the benefit of creditors, if a trustee, or similar agent is appointed with respect to any property or business of the other Party, or in the case of the Client, if the Client materially breaches its obligations to make payment pursuant to this Agreement.

 

ARTICLE II

Background & Relationship of Parties

 

2.1       Company is in the business of, among other endeavors, creating digital marketing strategies for organizations and businesses to make lasting healthcare improvements in their communities.

 

2.2       Client desires to retain Company for the purposes of providing technology, service, and support for telehealth and remote patient monitoring solutions.

 

2.3       Pursuant to the terms of this Agreement, Client is engaging Company to furnish services and/or digital products related to Client’s business (services and goods are hereinafter, collectively, the “Deliverables”). For purposes of this Agreement, Deliverables shall include, without limitation, any services, materials, articles, models, samples, products, software, data, records, reports, notices, drafts, writings, documents, audio visual works, ideas, know-how, artwork, illustrations, photographs, recordings, drawings, designs, specifications, and/or information, whether in physical, electronic, magnetic, or other form.

 

2.4       Company acts solely as an independent contractor and neither Company nor any of its employees shall be employees of Client for any purpose.  An Agreement does not create a partnership, joint venture, or any similar relationship between Client and Company, and neither party shall have any authority to bind, incur any liability on behalf of, or to otherwise act as agent of the other. 

 

ARTICLE III

Statement of Work & Compensation

 

3.1       Projects.  During the term of this Agreement, Client and Company may execute one (1) or more Statements of Work (an “SOW”) substantially in the agreed form as attached hereto as Exhibit A.  In no event shall Client be obligated to enter into any SOW with Company.     

 

3.1.1     Triggering of Work.  Client may from time to time submit or request the submission of a proposed SOW for specific Deliverables. If both Client and Company accept the terms of the SOW, they each shall execute the SOW.  A fully executed SOW becomes part of and shall be subject to the terms of this Agreement.

 

3.1.2     Changes.  From time to time, Company may require or Client may request a change related to the Deliverables and/or Company’s compensation (a “Change”).  No such Change shall be binding on either Party without an express written Change order or amended SOW signed by both Parties.

 

3.1.3     Inactive Projects. SOW projects that go dormant for longer than 45 days will incur a fee to resume work at the discretion of Company.

 

3.1.4     Termination of SOWs. Termination of this Agreement shall operate to cancel and terminate all pending SOWs. Any individual SOW may be cancelled or terminated independently of the rest of this Agreement.  

 

3.1.5     Supremacy. In the event of any conflict between the terms of this Agreement and the terms of an SOW, the terms of this Agreement shall control, unless otherwise expressly stated to the contrary in the SOW and agreed to by the Parties in writing (with reference to this Section 3.1.5 and to the specific Section(s) intended to be superseded) and attached to this Agreement as an amendment. Any preprinted terms and conditions on a purchase order, quotation, acknowledgement, invoice, or similar document which conflict with the terms of this Agreement are deemed superseded by this Agreement.

 

3.2        Compensation.

 

3.2.1     Payment Terms. Compensation to Company shall be in the amounts and/or at the rates set forth in a fully executed SOW. Company shall issue its invoice within thirty (30) days of satisfactory completion and acceptance by the Client of the Deliverables. Company may issue invoices on a monthly basis if the applicable SOW requires Company’s performance over a period in excess of 45 days. In the event payment is not made within 30 days of invoice, Company may charge a late payment fee of 3.5% per month on any overdue and unpaid balance not in dispute. In addition, Company reserves the right to stop work under this Agreement or any SOW until payment is received.

 

3.2.2     Reimbursable Expenses.  Client will reimburse Company for such reasonable business expenses and the costs of supplies and similar materials as may be approved by Client.

 

3.2.3    Collection Costs. In the event that Company incurs legal fees, costs or disbursements in an effort to collect its payments due under this Agreement or any SOW, Client agrees to reimburse Company for such expenses, along with interest on its unpaid balance.

 

3.3       Right to Terminate. Company may terminate this Agreement if Client fails to pay any non-disputed invoiced amounts when due; provided, however, that Company first shall provide Client with written notice of such alleged default and a ten (10) day opportunity to cure. Upon termination:

 

3.3.1     Client shall comply with all terms contained in this Agreement pertaining to rights in all Deliverables and the disposition of all Confidential Information (as defined below in Section 9.1), Company’s property, property belonging to any third party, and records.

 

3.3.2     Client shall be entitled to receive any and all work in progress.  In exchange for any such work in progress delivered to Client, Client will pay a reasonable amount based on the nature of the work, the pricing structure related thereto, and the state of completion of the work. 

 

3.3.3     Company will transfer any and all work in progress to Client or to the person designated by Client in writing.

 

ARTICLE IV

Compliance with Laws and Security

 

Company shall perform the Services in compliance with all applicable federal and state laws and regulations, business conduct, regulatory, health and safety guidelines and industry codes established by any relevant governmental authority, including, but not limited to, the federal Health Insurance Portability and Accountability Act of 1996 (“Data Protection Regulation”). In the event that Company, in the course of providing Services to Company, receives, stores, maintains, processes or otherwise has access to “Personal Information” (as defined in the Data Protection Regulation and including, but not limited to, an individual’s name and social security number, driver’s license number or financial number) then Company shall safeguard this information in accordance with these laws, and to the extent that Company experiences a Security Breach as defined under the Data Protection Regulation for information generated in connection with this Agreement or any Statement of Work hereto, Company shall notify Client in writing within 24 hours of discovering such Security Breach. 

Company shall implement and maintain commercially reasonable physical, technical and organization security measures appropriate to the nature of the Personal Information, and as set forth in this Agreement.

ARTICLE V

Company’s General Obligations

 

5.1       Company will furnish to Client all Deliverables described by a particular SOW and will provide everything required for the furnishing of such Deliverables except as may otherwise be expressly stated in the SOW.   

 

5.2       Client has selected Company based on Company’s unique qualifications in light of the nature of the work required by Client.

 

5.3        Company shall ensure that all personnel used by it in the provision of the Deliverables possesses the necessary qualifications and experience to be reasonably expected of an expert competent in the field of providing services similar to the Deliverables.

 

5.4        Company shall use commercially reasonable efforts to ensure that the performances of the Deliverables does not result in the degradation or damage of the Client’s systems and equipment except if Company has notified Client in writing in advance of scheduled downtime and the timing.

 

5.5       If Company is required to provide Deliverables that involve access to Client’s validated systems, Company shall comply at all times with Client’s internal change control procedure as the same shall be provided by Client to Company.

 

5.6       Company shall take all reasonable precautions to safeguard any and all of Client’s property (including Client’s intellectual property and Confidential Information (as defined below in Section 9.1)) in Company’s custody or control.

 

5.7       Company shall obtain releases, licenses, permits and any other authorization to use testimonials, copyrighted materials, photographs, artwork or any other property or rights belonging to third parties obtained by Company for use in creating the Deliverables.

 

ARTICLE VI

Warranties and Disclaimers

 

6.1       Company represents and warrants that:

 

6.1.1     Company will perform all of the duties that may be required by the terms of this Agreement and any SOWs all to the reasonable satisfaction of Client. 

 

6.1.2     Company has experience with assisting many clients in providing guidance to meet their the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the regulations set forth thereunder at 45 C.F.R. Part 160 and Subparts A and E of Part 164 (the “HIPAA Privacy Regulations”) compliance and contractual obligations. 

 

6.1.3     Company has the full legal right to enter into this Agreement and to perform fully all duties and obligations.  Company and Company’s employees, subcontractors, and representatives are and will remain in compliance with all applicable laws, regulations and codes.

 

6.1.4     Company has the full legal right to enter into this Agreement and to perform fully all duties and obligations.  Company and Company’s employees, subcontractors, and representatives are and will remain in compliance with all applicable laws, regulations and codes.

 

6.1.5     The Deliverables do not knowingly infringe any intellectual property rights or any other rights of any person, and any reasonable use thereof by Client consistent with this Agreement does not knowingly infringe any such intellectual property rights or any other rights.

 

6.1.6     Company will comply with and will cause Company’s employees, subcontractors, and representatives to comply with all laws, rules, regulations, and codes and, to the extent applicable hereunder or under any SOW.

 

6.2       Client represents and warrants that:

 

6.2.1     Client has the full legal right to enter into this Agreement and to perform fully its duties and obligations.  Client and Client’s employees and representatives are in compliance with all applicable laws, regulations and codes.

 

6.2.2     The documents, information, materials, designs, and/or programs provided by Client to Company for completion of the Deliverables do not and will not infringe any intellectual property rights or any other rights of any person or entity.  Client will not provide to Company any idea, data, program, technical or business information, or other tangible or intangible property without the right to do so.

 

6.3       Protection Program on Devices.

 

6.3.1     If Company provides device(s) to Client, each device shall be paired with loss, theft, and damage insurance to ensure that same-day replacement device(s) may be issued when problems arise.

 

6.3.2     The device(s) protection program terms include:

a)       Covered claims include: accidental damage, such as cracked screens or liquid spills, liquid submersion, theft/burglary/robbery with verifiable police report, fire/flood damage, vandalism with verifiable police report, natural disasters, power surge due to lightning;

b)      Damage claims may be submitted twice per year per device;

c)       Verifiable theft claims (with police report) may be submitted once per device per year;

d)      Non-verifiable theft or loss claims may be submitted once per device per year, with a maximum claim limit of 15% of owned devices per year; and

e)     Any lost or stolen devices that are replaced through the device protection program and then recovered after a replacement device is issued are property of Company.

 

6.4       WARRANTY DISCLAIMER.

 

6.4.1     EXCEPT AS OTHERWISE AGREED UPON BY THE PARTIES IN A SOW, Company makes no warranty that:

a)     the Deliverables will be uninterrupted, timely, secure or error-free;

b)    the results that may be obtained from the use of the Deliverables will be effective, accurate or reliable; or

c)     any errors in the Deliverables obtained from Company will be corrected.

 

6.4.2     Company may make changes to the Deliverables or documentation made available on its web site at any time without prior notice.

 

6.4.3     Company assumes no responsibility for errors or omissions in the Deliverables or documentation available from its web site.

 

6.4.4     In no event shall Company be liable to Client or any third parties for any special, punitive, incidental, indirect or consequential damages of any kind, or any damages whatsoever, including, without limitation, those resulting from loss of use, data or profits, and on any theory of liability, arising out of or in connection with the use of the Deliverables.

 

 

ARTICLE VII

Rights to Work Product and Deliverables

 

7.1       Licensed Software.  This Agreement does not and shall not affect either Party’s rights with respect to any software licensed to Company outside this Agreement, whether it is incorporated into any Deliverables or otherwise used by either Party.

 

7.2       Property Rights Generally.  Company is and shall be the exclusive owner of all property rights, whether real, personal, tangible, intangible, or in the nature of intellectual property rights, in and to the Deliverables and all components and derivatives thereof.  Such rights shall vest in Company when the particular Deliverable is first created or when it is first acquired by Company.

 

7.3       Assignment to Client. When Client’s final payment has cleared, copyright will be automatically assigned as follows:

a)     Each site will own the visual elements that Company creates for its individual projects.

b)     Company shall give each site access to source files and finished files and shall keep them secure, as Client is not required to keep a copy.

c)     Client shall own all elements of text, images and data that Client provided, unless they are owned by an outside third party.

d)    Company shall share access to the resources with Client at the request of each site.

 

Company shall own the unique combination of the elements that constitute a complete design. Company shall license the combined elements to Client, exclusively and in perpetuity for this project only, unless agreed in advance by Company in writing.

 

7.4       Client Property Rights.  Company recognizes that a particular SOW might call for the use of property developed independently by Client prior to the execution of this Agreement, and to which Client does not intend to relinquish any of Client’s pre-existing rights.  In such event, Client shall describe in detail and in writing the nature of Client’s claim to such property and/or intellectual property rights and the Parties shall agree in writing on the terms of such incorporation in the Deliverables, license to, or use by Company. Client guarantees that all elements of text, images, or other artwork Client provides are either owned by Client, or that Client has permission to use them.

 

7.5       Purchase of Materials. Company shall purchase any non-cancelable materials, services, etc. for Client’s account (either specifically or as part of a plan such as modules, photography and/or external services) shall be paid for by Client, in accordance with the provisions of this Agreement.

 

7.6       Transfer of Materials. If upon termination, there exist any materials furnished by Company or any services performed by Company for which Client has not paid in full, until such time as Client has paid Company in full, Client agrees not to use any such materials, in whole or in part, or the Deliverables. However, upon termination of this Agreement, provided that there is no outstanding indebtedness then owing by Client to Company, Company shall transfer, assign and make available to Client all property and materials in its possession or control belonging to Client. Client agrees to pay for all costs associated with the transfer of materials.

 

ARTICLE VIII

Insurance and Indemnification

 

8.1       Company agrees to maintain insurance in a minimum amount of One Million Dollars ($1,000,000.00) per occurrence, Two Million Dollars ($2,000,000.00) in the aggregate, to fully protect Company and Client from any and all claims which may arise during the performance of or as a result of the work provided hereunder or arising out of the use or sale of any of the Deliverables. 

 

8.2       Each Party will protect, defend, and indemnify the other Party against any and all losses, damages, costs, and expenses (including interest, penalties, and reasonable attorney and other professional fees) recoverable at law or in equity (including those incurred as a result of third-party claims against the other Party) to the extent arising from: any breach of the other Party’s obligations under this Agreement; any act or omission of negligence, gross negligence, or willful, wanton, or intentional misconduct of the other Party or its employees, subcontractors, or representatives; any claim that the Deliverables (including any components or derivatives thereof) or the use thereof, infringe the rights of another person. 

 

ARTICLE IX

Confidential Information, Protected Health Information (PHI),

Electronic Protected Health Information (ePHI), & Use of Property

 

9.1       “Confidential Information” includes all confidential and proprietary information that is designated as such in this Agreement and all other information that Company or Client deems confidential or proprietary (including information deemed confidential or proprietary by virtue of either Party’s obligations to another party). 

 

9.1.1     Confidential Information specifically includes, but is not limited to, actual and prospective customers, business prospects, customer account strategies, customer unpublished information, confidential or proprietary client/partner information, business records and plans, financial statements, research techniques, research results, media plans, scripts, reports, client pitch materials, data, services, strategies, trade secrets, technical information, products, inventions, improvements, product design information, pricing structure, discounts, costs, computer programs and software, source code and/or object code, Client’s methods, protocols, programs, systems, materials, designs, and techniques, copyrights and other intellectual property and any other information deemed confidential or proprietary, whether or not it is marked as such.  The Parties agree to adhere to all federal, state and local laws regarding the use and/or dissemination of Personal Information (including sensitive personal information) (“PI”) and PI shall be deemed Confidential Information for purposes of this Agreement. Client may conduct initial and periodic assessments of Company’s privacy and security safeguards and practices. Both Parties shall use encryption or other equivalent measures in the transfer, communication, and/or remote access of Confidential Information.

 

9.1.2     Confidential Information may be acquired by written, oral, or electronic communication, either directly or through one or more intermediaries, or by visual observation.  Provided, however, if Confidential Information is disclosed in written or electronic form, it shall be marked with "confidential", "proprietary", or a similar marking, and if it is verbally disclosed, the confidentiality thereof shall be confirmed by the disclosing party in a writing summarizing the Confidential Information as soon as practicable after such verbal disclosure.

 

9.1.3     Confidential Information does not include any information (i) that was or becomes generally known to the public by means other than a breach of a contractual, legal, or fiduciary duty; (ii) is in the lawful possession of the acquiring party prior to acquisition as a result of this Agreement or any SOW or related agreement; or (iii) was or becomes available to the acquiring party on a non-confidential basis from a third person that is not bound by any contractual, legal, or fiduciary duty and without fault of the acquiring party.

 

9.2       Protected health information (“PHI”), also referred to as personal health information, refers generally to demographic information, medical histories, test and laboratory results, mental health conditions, insurance information, and other data that a healthcare professional collects to identify an individual and determine appropriate care.

 

9.3       Electronic protected health information or (“ePHI”) is defined in the HIPAA Privacy Regulations as “any protected health information (PHI) that is created, stored, transmitted, or received in any electronic format or media.”

 

9.4       HIPAA Compliance as a Business Associate. Pursuant to the HIPAA Privacy Regulations, the Company is a “Business Associate” (as such term is defined in the HIPAA Privacy Regulations). Company hereby accepts and agrees to comply with the requirements of HIPAA and the HIPAA Privacy Regulations applicable to Business Associates.

 

9.5       Temporary Receipt of PHI or ePHI. While Client’s patients’ PHI or ePHI may temporarily pass through or reside on the Company’s site or electronic systems, the Company does not collect or maintain PHI or ePHI. Any PHI or ePHI that Company receives is temporarily housed and is thoroughly protected in compliance with Company’s security policies and procedures then in place and, if required, in collaboration with its third party service providers. If any PHI or ePHI from a user does remain on Company’s websites or electronic systems, Company does not use, disclose, sell, or otherwise handle or distribute any PHI or ePHI or identifying information related to that PHI or ePHI from any user, and such PHI or ePHI will be promptly removed and properly deleted.

 

9.6       Compliance of Third Party Service Providers. Company recognizes that third parties with which it contracts to provide services to Client may be subject to certain requirements of the HIPAA Privacy Regulations. Company’s third party service providers offer and provide services to Client that may involve the use and disclosure of PHI or ePHI. If the Client, directly or through use of a third party service provider, establishes configuration directives, mobile applications, or deployment execution, such actions will directly affect the security of the Confidential Information, PHI or ePHI on any device, whether provided by Company of otherwise. Company does not provide any guarantee RELATED TO data protectionS of third-party applications that Client chooses to include on A device, whether OR NOT containing Confidential Information, PHI or ePHI.

 

9.7       Neither Party will disclose, claim any right to, or use Confidential Information except as authorized by the disclosing Party in writing and for the purpose for which the Confidential Information was received.

 

9.8       If either Party is required to disclose Confidential Information by any governmental agency or by compulsion of law or court order, the receiving Party will give the disclosing Party reasonable advance notice prior to making such disclosure, if allowed by law, to permit the disclosing Party the opportunity to intervene in such proceedings to attempt to limit or prevent such disclosure. 

 

9.9       Promptly upon termination, expiration, or cancellation of this Agreement, for whatever cause, both Parties will promptly account for and deliver to the other Party all Confidential Information in the Party’s possession, custody, or control.

 

9.10      The prohibitions on disclosure and use of Confidential Information survive the expiration, termination, or cancellation of this Agreement, for whatever cause. 

 

9.11      Use of Property includes all tangible personal property, intangible personal property, and all electronic information and records belonging to the disclosing Party. The receiving Party will exercise appropriate care of all tangible and intangible property, including electronic records, of the disclosing Party and its clients and partners (the “Property”) to protect against (and will notify the disclosing Party promptly of) damage, loss, and unauthorized use or disclosure. Property includes, without limitation:  names of clients, partners, companies, individuals, products, and services; logos, trademarks, and service marks; and Confidential Information.  The receiving Party will not use Property for any purpose other than fulfilling the disclosing Party’s obligations under this or any related Agreement. The receiving Party will not exploit, publish, disclose, encumber, dispose of, or transfer any Property without the disclosing Party’s prior written consent (unless required by law). Upon termination of this Agreement, the receiving Party will deliver all Property to the disclosing Party and will destroy all photocopies and residual electronic records thereof.  Destruction of an electronic record requires destruction of the physical medium on which the record is stored or complete and permanent removal of the record from the storage medium.

 

ARTICLE X

General Provisions

 

10.1      Assignment.  Neither Party may assign this Agreement without the prior, written consent of the other Party, which consent shall not be unreasonably withheld; provided, however, that Client may assign this Agreement to any related company or to a successor to all or substantially all of Client’s business operations. This Agreement will be fully binding upon and inure to the benefit of the Parties and their respective successors, heirs, and assigns.

 

10.2      Notices.  Any notices hereunder shall be given in writing by personal delivery, via facsimile with transmission confirmation, via recognized national overnight delivery service with delivery confirmation, or by mail, registered or certified, postage prepaid with return receipt requested. Notices delivered personally, via facsimile, or via overnight mail shall be deemed effective as of the date of receipt and mailed notices shall be deemed effective as of the day of mailing. All notices shall be sent to the following address, unless otherwise specified by a Party in writing:

           

If to Company: Continuud             735 Shelby Street                                              Indianapolis, IN 46203                                      Attention: Richard Walsh                                  Email: richard@continuud.com	If to Client:
With a copy to:                                                             Gutwein Law                                                    200 S. Meridian Street, Suite 420             Indianapolis, IN 46225             Attention: Karen Young                                    Email: karen.young@gutweinlaw.com	With a copy to:

                                                                       

           

 

10.3      Remedies.  The naming of a specific remedy shall not preclude the pursuit of any other remedy that may be available at law or in equity. 

 

10.4      Choice of Law; Dispute Resolution; Forum.  In the event of a dispute arising out of or relating to this Agreement that is not resolved through the good faith efforts of the Parties, the Parties shall submit such dispute to mediation, within thirty (30) days of a demand for mediation by either Party, prior to the initiation of formal legal proceedings; provided, however, that a Party may file formal legal proceedings in advance of mediation to prevent the expiration of a statute of limitations or similar deadline or to seek emergency or injunctive relief. This Agreement does not address the law that governs disputes arising out of this Agreement or the subject matter hereof.   

 

10.5      Construction.  If any provision of this Agreement is held to be unenforceable, the other provisions will remain in effect and, if possible, the offending provision modified to the slightest degree necessary to make it enforceable, remaining as close as possible to the original provision.

 

10.6      Non-Waiver.  No delay in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege or of any other right, power, or privilege.  No provision of this Agreement may be waived unless in writing and signed by the Party to be bound by such waiver. In the event any Deliverables are provided after the expiration date of this Agreement, the terms and conditions of this Agreement shall control.

 

10.7      Force Majeure; Excused Performance.  In the event either Party is delayed or hindered in or prevented from the performance of any of its obligations required under this Agreement by reasons of strike, lockouts, labor troubles, inability to procure materials, failure of power or restrictive government or judicial orders or decrees, riots, insurrection, war, terrorism, pandemic, acts of God, inclement weather or any similar reason or cause beyond the Party’s reasonable control, and such Party has exerted all reasonable efforts to avoid or remedy such event, then performance of such act shall be excused for the period of such delay; provided, however, that if such delay continues in excess of 1 month, either Party may terminate the affected SOW by providing written notice of such termination to the other Party.  Notice of the start and stop of any such force majeure event shall be provided in writing to the other Party.    

 

10.8      Integration; Amendments.  This Agreement, including all exhibits and attachments, represents the entire understanding between the parties and supersedes any prior written or oral statements or agreements regarding the subject matter hereof.  No amendment to this Agreement will be binding on either Party unless in writing and signed by each Party.

 

10.9      Counterparts.  This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall form a single instrument. 

The Parties have executed this Agreement as of the date stated in the introductory paragraph. 

 

COMPANY   D&D AdVenture Corp, LLC (d/b/a Continuud)   By:_________________                         Printed Name: Richard D. Walsh   Title: CEO

PROVIDER   ___________________________________     By:________________________________                        Printed Name:______________________   Title:______________________________